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Stuart J
Stuart J, Solicitor
Category: UK Traffic Law
Satisfied Customers: 22400
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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I stayed at Zinc holiday apartments in Cornwall at Easter

Customer Question

Hi I stayed at Zinc holiday apartments in Cornwall at Easter and the underground parking is patrolled by Armtrac. I didnt have the parking pass displayed and they issued me with a ticket. I have appealed as the registered keeper however they have rejected this and ask that i either pay the fine or appeal to the www.theias.org. I have read on forums that they also just reject the appeal. I have read the will pass this on the debt collectors and maybe threaten courst. Could they take me to court. The reason I am worried is that I am a member of the CISI through myjob as an investment manager and any case like this may be detrimental to my membership. What should I do?
Submitted: 1 year ago.
Category: UK Traffic Law
Expert:  Stuart J replied 1 year ago.
I apologise for the length of this post but this is a standard answer to a standard question which has cropped up on numerous occasions before. It tells you everything that you want to know about Private land charges and how to appeal them on what’s likely to happen. It also covers the situation at airports in particular partway down. Please READ IT FROM END TO END because it will save you a lot of research on Google. This is probably the only post you are ever going to need to read with regard to Private Land charges. Are you sitting comfortably? This is not a fine. It is a bill for parking! It is on private land. The situation is different for council tickets. If this wasn’t private land then this is the wrong answer for you! In Scotland you can ignore it or tell them to contact the driver but don’t tell them who the driver is, that is unless you have admitted being the driver. I am therefore assuming that you are in England. Before October 2012 these could have been ignored or it was possible simply to tell them to the contact the driver who parked the car but simply not to tell them who that person was. However, for some strange reason Parliament decided to enact the Protection of Freedoms Act, which made these private land parking charges enforceable in the County Court as a contractual dispute against the registered keep if the driver didn’t own up.This Absolutely the worst thing that you can do now is ignore it because they will assume that you will continue to ignore documentation and issue proceedings hoping that you will ignore those and they will get default judgement. Don’t ignore it! The parking company will not normally know who the registered keeper is but will get those details from DVLA for a couple of quid because the request is made regarding an incident involving the vehicle. Anyone can do that in similar circumstances such as this or an accident or any other incident involving a vehicle. For some even stranger reason, all parking charges whether these private ones, or local authority ones can be enforceable against the registered keeper. I find that a bizarre thing in English law. It’s like someone that drives your car having an accident and you the car owner, not involved in the accident, being held responsible if they don’t deal with it. Stupid but then again, sometimes the law is an ass. So, even if the person who parked the car is not the registered keeper, the registered keeper picks up the tab if the driver fails to do so. If you Google Protection of Freedoms Act and Private and parking it will give you plenty of reading. The way these are dealt with is just in the same way as a debt. The person parks the car, sees the sign (that can be a problem) which says that the person agrees to pay £X for parking there longer than one hour or two hours or whatever. However for someone enter into a contract for charging for parking, they need to know that they are entering into the contract and anyone parking needs to reasonably know that there is a charge for parking. Whilst it may be possible to get away with one of these on that basis it is probably not possible to get away with half a dozen because after the first one or two, the person receiving the tickets would have had notice. The fact that there may be markings outlining the parking bays or not is immaterial. The signage can actually make it chargeable to park outside the Bay (if there are markings) or without a disabled sticker. Remember these are not penalties (because English law is not punitive) but they are contractual charges. Hence, the company does not have to suffer or prove loss. So defence would be that anyone sitting in the car having parked or driving into the car park, cannot see a sign (if there are not sufficient signs or because you’re driving, you can read and drive at the same time!) therefore could not know they were agreeing to park for a fee because there were not enough signs. Whether there are enough signs or not depends on the facts and in support of such a defence is going to need a layout of the car park, photographs and the number of signs. However, there is another defence that you can put in as well as the lack of signage (if lack of signage is indeed the case) and that is that this is a penalty charge and penalty charges are not enforceable in English law. I fail to see how a charge of 60 quid or whatever for failing to pay a ticket or staying over by a certain period of time, could be anything other than a penalty. At airports, (in particular) they are now charging for actually stopping! It doesn’t matter whether you stop for even 10 seconds to pick someone up, you agree to the charge by doing so. I have experience of this in particular and I in my opinion, there is an absolute defence to this, if it ends in court, because it’s impossible to read the sign when you’re driving and therefore even if there are signs, you have to stop to read it by which time they want their pound of flesh! If you are going to defend one of these, you are going to need a photograph of the sign (don’t stop to take the photograph but stop out outside the area and walk!) and details of exactly where they are located. There is another argument and that is that the charge is unreasonable If the notice says that the charge is (for example) £60 and then it increases to £100 if you do not pay within 14 days for example, then the extra charge over and above the original £60 is unlikely to be enforceable because it is a penalty charge (a penalty for not paying as opposed to a penalty for parking) and punitive charges (penalties) for non-payment are not enforceable in English law apart from interest at 8% per annum on commercial and non-commercial debts and a fixed a late charge in respect of commercial debts, but that is another issue altogether and doesn’t apply here. There is an even further argument with regard to these charges being punitive and that is that a fee for a couple of hours parking is probably going to be five quid at the most and therefore there is not even justification for charging £60! During early 2015 there was a lot of commentary in the news that various motoring organisations are going to lobby Parliament to make these penalty charges (which is, after all, what they are) unenforceable. It would appear there is no reason why the government should not do that bearing in mind that they make nothing from these private charges at all. It remains to be seen what happens. Any court action can be defended on the grounds that there is not sufficient signage and it would then be for the court to decide whether the person defending succeeded in defending the claim or not it actually gets as far as going to court. Anyone can make an appeal to the company but they are in the business of collecting money for these charges and therefore they will not give up easily and in my experience, appealing to the parking enforcement company as a waste of time. Private Charges can be appealed to POPLA. http://www.popla.org.uk/makinganappeal.htm if you look ½ way down page the grounds for appeal are limited. To be frank, I have known very few of these go to court because the cost of enforcing a £60 or £120 charge in the Small Claims Court is firstly risky (because they lose the court costs if you win) and secondly not financially viable. If whoever is dealing with it on behalf of the parking company has to travel from wherever they are based to your local court and sit around for half a day. It is different if they have several in court at the same time or there are several against one owner. Taking someone to court for half a dozen times £100 may be worthwhile, Although not if it is at the other end of the country. It is small claims court and they will not usually get their legal or solicitor’s costs back (although than court costs) even if they win. If they do issue court proceedings (which are extremely unusual), it is imperative that you deal with it by submitting a defence. It will then be transferred to your local court. There is a caveat to my last statement and that may be contained in the wording of the signage. If on the wording of the signage, it says that they are entitled to recover their costs of enforcing the agreement, then, if it goes to court and they win, they may be able to claim their court costs and time from you, including their solicitor’s costs. Although, if they spend a couple of thousand pound instructing solicitors (very risky) even though they win, you can object to all those costs being awarded on the basis that their costs are disproportionate to the amount in dispute. I have looked at many such parking signs and I have never actually seen the provision on one yet but that is not to say that the parking companies will not get wise to it when they start putting signs up. I will tell you that appealing these directly to the parking company is generally a waste of time paper an envelope and the Stamp quite simply because they are in it for the money and without these penalty charges, they make no money. If everyone simply refused to pay, they would be out of business in weeks if not months. There is no incentive for them therefore (they have no sense of fair play!) To quash the charge. What would I do? The same as I have always advised everyone else, DON’T IGNORE IT Tell them (in writing) that you have no intention of paying and that they should take you to court and let them take you to court. I have never yet known one go to court apart from one gentleman who had 30 tickets in the same car park in a 12 month period at the place where he worked (hospital) because he quite simply refused to pay the charge. They did take it to court because, for 30 tickets it is worth them going to court. Remember that they are enforceable in the correct circumstances, it is the value of the individual ones which makes it not worthwhile. For 30, it was worthwhile. There is no guarantee they will not take you to court and that is the risk that you run. There is only a tiny percentage of these that ever go to court and if you have the time, you can defend it on the basis there is not sufficient signage and if you don’t have the time, and you want to pay some money, in cases like this, I never suggest making an offer. I suggest sending a cheque. Armed with a cheque in the hand for some of the amount they want, compared to an argument over the whole of the amount, (and arguments that they may win or lose) the cheque in the hand is a pretty powerful incentive to accept it. You wouldn’t believe how many people I make this suggestion to and they ignore it and make an offer and don’t send a cheque and then they are surprised when the offer is rejected! So consider deciding how much would be reasonable to pay (the offer needs to make it attractive enough) and send it with a covering letter headed “without prejudice save as to costs”. That means that they cannot produce the letter in court as an admission of owing them any money at all. Tell them in the letter that this money is being offered in full and final settlement of all claims, past, present and future, and that by cashing it they accept it as such. Tell them that if they do not accept it, they should return the cheque and if they issue legal proceedings, they will be defended them on the basis of A, B, C, whatever. Do tell them that this is not your money (because you do not have it) and that it has come from someone else who has agreed to discharge the debt for you. Tell them that if they do not understand the significance of the letter. They should take independent legal advice. I can tell you this approach works nine times out of 10, provided the offer is reasonable and not derisory. For legal reasons which I will not bore you with but which go back several hundred years, the cheque must not come from the debtor, but must come from a third party, friend, relative, solicitor, our accountant, neighbour, girlfriend, wife, husband, whoever, just not from the debtor. Here is some rather heavy reading http://www.voltimum.co.uk/news/2312/cm/the-law----full-and-final-settlement-.html Does that answer the question? Can I answer any specific points arising? PS. A friend of mine got charged for stopping (stopping not parking!) at Liverpool airport and he took my advice and sent a cheque for either 5 pounds or £10 (I can’t remember) with my suggested covering letter and the cheque was cashed and he never heard another thing.
Customer: replied 1 year ago.
Thanks ***** do not use Popla anymore after Feb 2015. They use ww.theias.org who also just reject the appeals according to many forums. it seem the owner of armtrac is quite happy to take people to court http://www.westbriton.co.uk/Parking-company-director-phased-trips-court/story-20935058-detail/story.htmlI have also just seen this which changes things i think from the IPC website
http://www.theipc.info/ Independent Parking Committee Press Release
Beavis v Parking Eye - victory for the private parking sector!
Parking on someone else’s land is a privilege and not a right to be abused. Today the Court of Appeal handed down its judgment in the case of Beavis v Parking Eye. The judgment confirms that parking charges which are issued are legally enforceable and do provide landowners with the much needed protection for their land. It goes against recent high profile releases which caused confusion for motorists at a time when clarity was required, such confusion will have no doubt caused many trusting motorists to refuse to pay their parking charges and who will now be faced with a higher bill as a result.
We now have the much needed clarity for motorists who receive a parking charge notice. It serves as a significant reminder to motorists that when parking on private land they do so in accordance with the conditions that the landowner is entitled to place upon them. Motorists should always take time to consider signage on public or private land to ensure they understand and comply with their obligations. Where a motorist does not wish to abide by the conditions then they should leave the car park and choose another location to leave their vehicle.
A lot of work has gone into improving the private parking industry in recent years and there are continued improvements being made all of the time. Where a motorist parks on land which is operated by a member of an Accredited Trade Association, either ourselves, The Independent Parking Committee or the British Parking Association, then they have the right to appeal to the parking operator and if that is unsuccessful to appeal further to an independent appeals service for redress. If the company imposing the parking charge is not a member of the IPC or the BPA then it is unlikely they will be able to pursue the parking charge due to the strict requirements placed on the private parking operators by the DVLA which acts as a substantial safeguard to the millions of motorists who use the many thousands of privately owned car parks each day.
Expert:  Stuart J replied 1 year ago.
Thank you.Yes, I can understand that they simply reject the appeals because they’re in it to make money! However it doesn’t change my answer.However the landowner is only allowed to put the conditions on which they publicise. They cannot impose conditions after the event in those conditions must be on the attached notice.There is already case law which has different points than the instant case that the signage must be easily visible, readable and noticeable.However I’m not certain what you are getting at because they have always been enforceable, it’s just the extent to which they have been enforceable which has been in dispute.What I’m suggesting is to pay a much lesser amount rather than them have the trouble of taking you to court

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